Digital Commons Network^™

Grains Of Sand Or Butterfly Effect: Standing, The Legitimacy Of Precedent, And Reflections On Hollingsworth And Windsor, Maxwell L. Stearns

Maxwell L. Stearns

One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model. In a …

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

Religions As Sovereigns: Why Religion Is "Special", Elizabeth A. Clark

Elizabeth A. Clark

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

The Second Amendment´S Fixed Meaning And Multiple Purposes, Thiago L. B. Sturzenegger

Thiago L. B. Sturzenegger

The Second Amendment’s Fixed Meaning and Multiple Purposes

The faith to the Constitution’s textual meaning may provide the interpreter with the ability to perceive the adaptability of a constitutional provision to different social and political contexts. The text of the Constitution refers to principles of law; principles that are indispensable in different ways throughout time. Textualism as a constitutional interpretation model may offer the path to a more versatile Constitution.

To support this statement, this work examines the cases in which the Supreme Court interpreted the Second Amendment to the Constitution. The focal point of interest is the uses of …

Time And Judicial Review: Tempering The Temporal Effects Of Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article deals with a predicament inherent in judicial review: Under the traditional view, judicial declarations of unconstitutionality apply retrospectively, meaning that the law is treated as void from its inception — as if it was never enacted. This, however, means nullifying all the legal arrangements, rights, interests, and obligations that were established under its authority, which can have far-reaching ramifications for both public and private interests. The Article explores the Israeli Supreme Court's approach for dealing with potential negative consequences of retrospective voidance of statutes. It focuses on three main remedial strategies for tempering the temporal effects of invalidating …

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

A Triumph Of Ill Conceived Language: The Linguistic Origins Of Guantamo’S “Rough Justice”, Brian Christopher Jones

Brian Christopher Jones

Throughout the years, the Naval Base at Guantanamo Bay has witnessed an abundance of intriguing linguistic words and phrases. For example, “Freedom Vanilla” replaced French Vanilla ice cream in the mess hall, and the area where journalists and others were often sequestered during their visits to the base was re-named “Camp Justice.” The list goes on. However, the language that has had the most significant impact throughout the years has been the words and phrases used in the administration of justice regarding the detainees being held on terrorism charges.Wall St. Journal Supreme Court reporter Jess Bravin’s book, The Terror Courts: …